Introduction of Detailed Rules of International Adjudicatory Jurisdictionin Korea: Proposed Amendments of the Private International Law Act[Nagoya. June 5, 2016]

Professor Kwang Hyun SUK (石光現敎授)
School of Law, Seoul National University

I.

Introduction

The current Private International Law Act of Korea (“KPILA”) includes three articles on international
jurisdiction that were introduced in 2001. Art. 2 in Chapter 1 (General Provisions) lays down generalrules on international jurisdiction (hereinafter “jurisdiction” refers to “adjudicatory jurisdiction” or“jurisdiction to adjudicate”). Arts. 27 and 28 set forth special rules to protect consumers andemployees. In June 2014, the Ministry of Justice of Korea (“KMOJ”) established an expert committee(“Committee”) in charge of preparing the draft amending the KPILA, the term of which has expired
on December 31, 2015. The Committee consisted of ten experts including myself. The most importanttask of the Committee was to prepare an official draft of the amended KPILA. As of May 31, 2016,
however, an official draft of the amended KPILA has not been published. I hope the KMOJ will
arrange for the remaining works to be completed as soon as possible and publish the official draft
during the course of 2016.
When I accepted last December the request of Professor Takasugi to make a presentation on
the proposed detailed rules of international jurisdiction in Korea, I reasonably believed that by the endof May 2016, I could have the final draft of the amended KPILA. Unfortunately, however, that is not
the case. The final draft has not yet prepared. Therefore, to my regret, an unofficial English translationof the draft is not available today. In this article, I would like to discuss the major contents of theunofficial draft of the amended KPILA. I also would like to highlight the differences in jurisdiction
rules between the KPILA and the Civil Procedure Act of Japan (“JCPA”). Unlike Japan, which added
in 2012 detailed rules on international jurisdiction only on property law matters in the JCPA and Civil
Enforcement Act of Japan (“JCEA”), respectively, Korea will insert the rules on international
jurisdiction on not only property law matters, but also family law and succession law matters in the
KPILA, in parallel with existing rules on applicable law. I reasonably believe that detailed and refinedrules on international jurisdiction in the KPILA will take effect in 2 or 3 years.

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II.

1.

Direction and the Regime of the Future Jurisdiction Rules

Current Regime: Transitory Codification in 2001

Art. 2 of the KPILA states that detailed rules on international jurisdiction should be developed byconsulting, but without being bound by, the provisions on domestic territorial (or local) jurisdiction(or the venue provisions) of Korean law, such as Arts. 2 to 25, Arts. 29 to 31 of the Civil Procedure
Act of Korea (“KCPA”) in civil or commercial matters. However, it is necessary to take into accountthe special characteristics of international jurisdiction, as distinct from local jurisdiction. Insertion ofthese articles was a transitory measure which implied that detailed rules on international jurisdiction
would follow in the succeeding years. The reason why the Korean legislators were satisfied in 2001
with the transitory measure was that the “Judgment Project” aimed at developing a comprehensive
worldwide convention dealing with international jurisdiction and recognition and enforcement offoreign judgments in civil and commercial matters was underway under the auspices of the Hague
Conference on Private International Law. However, since the Judgment Project has failed, it is time
for the Korean legislators to complete their plan to provide detailed rules on international jurisdictionin the KPILA.

2. Direction of Amendment
A. Concretization and Individualization of Art. 2
The purpose of the amendment of the KPILA is to insert detailed and refined rules on international
jurisdiction in the KPILA. This means that the abstract principles declared by Art. 2 should be
replaced by more concrete and individual rules.

B. Rules on Direct Jurisdiction of Korea
Since the international jurisdiction rules of the KPILA will be binding upon Korean courts only, theCommittee decided to insert in principle rules on direct jurisdiction, provided, however, there are
exceptions. For example, in order to set forth neutral and fair jurisdiction rules, the Committee agreed
to insert rules of choice of court agreement both for Korean and foreign courts. Since the KCPA (Art.
217(1)) expressly provides that the rules on indirect jurisdiction are the same as those on direct
jurisdiction, the rules on direct jurisdiction of the KPILA to be inserted will also have importantmeaning for indirect jurisdiction in the context of recognition and enforcement of foreign judgments.
3. Structure
Chapter 1 of the KPILA will be amended as follows:
Current Provisions

Future Structure2Section 1. Art. 1 (Purpose)

Ch. 1

General provisions(§§1-10)Art. 1 (Purpose)
Art. 2 (General Principles)
Arts. 3-10
Articles on Governing Law

Ch. 1

Section 2 International Jurisdiction
Art. 2 (General Principles) plus New Articles to be added
here: general jurisdiction, jurisdictions based upon presence ofproperty, office or activity, jurisdiction agreement,
appearance, jurisdiction based upon relationship, counterclaim, lis pendens, provisional measures, exception, forum nonconveniens, non-contentious matters
Section 3 Governing Law. Existing Articles

In each chapter, new Section 1 on international jurisdiction will be added in Chapters 2 though 9(except for Chapter 3) and existing articles on governing law will be moved to new Section 2.
Current Provisions

Future Structure

Ch. 2

Person (§§11-16)

Ch. 2

Ch. 3

Juridical Act (§§17-18)

Ch. 3

Rights in Rem (§§19-23)

Ch. 4

Protection of Intellectual
Property (§24)

Ch. 5

Ch. 5

Obligations (§§25-35)

Ch. 6

Ch. 6

Family (§§36-48)

Ch. 7

Ch. 7

Succession (§§49-50)

Ch. 8

Ch. 8

Bills of Exchange,
Promissory Notes andChecks (§§51-59)

Ch. 9

Maritime Matters(§§60-62)

Ch. 10

Ch. 4

Ch. 9

Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law
No change
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Article on Governing Law
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law
Section 1 New Articles on Int’l Jurisdiction
Section 2 Existing Articles on Governing Law* Difference between Korea and Japan
Structure of the rules on international jurisdiction of the JCPA closely follows that of the local
jurisdiction (or the venue provisions) of Japan. This is not the case with Korea, where articles oninternational jurisdiction will be inserted in the KPILA, rather than KCPA. The decision to insert
articles on international jurisdiction in the KPILA was made in 2001 when several articles oninternational jurisdiction including Art. 2 were inserted in the KPILA.

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III.

General Provisions on International Jurisdiction (Chapter 1)

Here I will discuss the rules on international jurisdiction to be inserted in Chapter 1 of the KPILA in
the order of the articles.

1. Existing Art. 2: General Principles
Current Status(1) The courts shall have international jurisdiction if the parties or the case in dispute has asubstantial connection with the Republic of Korea. In determining whether or not such substantial
connection exists, the courts shall follow the reasonable principles in conformity with the ideas
underlying the allocation of international jurisdiction to adjudicate.
(2) The courts shall determine whether or not they have international jurisdiction by reference to theprovisions on jurisdiction of domestic laws, having full regard for the special characteristics of international jurisdiction in light of the provisions of paragraph (1).
Art. 2 states that detailed and refined rules on international jurisdiction should be developed byconsulting, but without being bound by Arts. 2 to 25 and Arts. 29 to 31 of the KCPA in civil orcommercial matters. At the same time, it is necessary to take into account the special characteristics ofinternational jurisdiction, as distinct from domestic territorial (or local) jurisdiction. The idea
underlying Art. 2 is to require Korean judges to establish more detailed and refined rules oninternational jurisdiction after considering the special characteristics of international jurisdiction,
instead of mechanically assuming that the ‘rules on international jurisdiction’ are equal to the ‘venue
provisions’ of the KCPA. Accordingly, the venue provisions of the KCPA could be used as areference for Korean courts in developing detailed and refined international jurisdiction rules.

Amendment / Legislation
Art. 2 will be amended to read as follows:(1) The courts shall have international jurisdiction if the parties or the case in dispute has asubstantial connection with the Republic of Korea. In determining whether or not such substantial
connection exists, the courts shall follow the reasonable principles in conformity with the ideas
underlying the allocation of international jurisdiction i.e., fairness to the parties, justice, promptness
and economy of trial.
(2) Where there is no provision on international jurisdiction in this Act, other acts or treaty, thecourts shall determine whether or not they have international jurisdiction by reference to theprovisions on jurisdiction of domestic laws, having full regard for the special characteristics of international jurisdiction in light of the provisions of paragraph (1).
Art. 2 will have two functions. First, it will declare the general principles regulating the international
jurisdiction of Korean courts. Second, Art. 2(2) will have a positive function whereby Korean courts
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can have international jurisdiction by reference to the venue provisions of Korean law where there is
no provision on international jurisdiction under Korean law or treaty. Art. 2(1) will also have apositive function whereby Korean courts can have international jurisdiction solely based upon
substantial connection where there is neither provision on international jurisdiction under Korean law
or treaty nor venue provision of Korean law. In this sense, Art. 2 is an open-ended provision with thenature of a general clause. On the other hand, Art. 2 will not have a negative function, which will beleft to a separate article dealing with the doctrine of forum non conveniens.
* Difference between Korea and JapanThe JCPA has no provision comparable to Art. 2 of the KPILA.
2.

General Jurisdiction

Current Status
The KCPA provides that an action is subject to the jurisdiction of the court located at the place where
the defendant has his domicile (in the case of a natural person) or its principal place of business (in thecase of a legal person; Arts. 2, 3 and 5 of the KCPA). It is generally recognized that this rule (actor
sequitur forum rei) applies to international jurisdiction.

Amendment / Legislation
An article setting forth the actor sequitur forum rei rule will be added in the KPILA.
The scope of cases where the actor sequitur forum rei rule is valid is not entirely clear. In particular, it
is not clear whether the rule will also hold true for non-contentious matters. The Committee agreed toinsert a provision in Chapter 1 that articles in the Chapter will apply, mutatis mutandis, to noncontentious matters unless their application is against the nature.
Exclusive Jurisdiction: An action relating to nullity or dissolution of a legal person or an
association, or the validity or nullity of the decisions of a legal person or an association established by
Korean law may be filed solely before Korean courts.
* Difference between Korea and Japan
In the case of association or legal person, the KPILA confers general jurisdiction to Korean courts if it
has its principal place of business, statutory seat or central administration in Korea or it wasincorporated or formed under Korean law. The JCPA confers general jurisdiction to Japanese courts if
the defendant which is not a natural person has its principal place of business in Japan or if it has no
office or if the location of its office is unknown, in the circumstances where its representative or any
other principal person in charge of its business is domiciled in Japan.

3. Jurisdiction based upon the Presence of Property of the Defendant
How to limit the scope of this ground of international jurisdiction?
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Current Status
An action relating to property rights against a person who does not have a domicile in Korea may bebrought before the court located in the area where the subject matter of the claim, the subject matterfor security or any attachable property of the defendant, is located (Art 11. KCPA). This appears toconfer local jurisdiction merely on the grounds of the location of any specified subject matter orproperty. Despite majority view criticizing such a position as allowing exorbitant jurisdiction, theSupreme Court admitted in 1988 that Art. 11 of the KCPA may be applied to international jurisdiction.
Majority view take the position that it should apply only when the defendant has had property in
Korea for a certain period of time and whose value is sufficient to cover the plaintiff’s claim.
However, considering a recent case of 2014, the Supreme Court now appears to depart from its
previous position.

Amendment / Legislation
The Committee had no objection against the rule that the presence of the defendant’s property could
constitute a ground of international jurisdiction for an action relating to property rights where thesubject matter of the claim or the subject matter for security is located in Korea. On the other hand,
there was much discussion in the Committee as to whether the presence of the defendant’s property
could constitute a ground of international jurisdiction for an action relating to property rights ingeneral which has nothing to do with that property. The conclusion was that the presence of property
could constitute a ground of international jurisdiction for an action relating to property if the property
can be a subject of arrest or seizure and the case in dispute has a substantial connection with Korea
unless the value of the property is substantially small. An arrest of a ship by a Korean court could
constitute a ground of international jurisdiction over the case against the owner of the arrested ship,
which will be set forth in the chapter dealing with maritime matters.

4-1. Jurisdiction based upon the Presence of Office or Branch
How to limit the scope of this ground of international jurisdiction?
Current Status
An action against a person maintaining an office or a business office can be filed before the court
located in that area only if the action concerns the business affairs of such office or business office(Art. 12 of the KCPA). It is generally recognized that this rule applies to international jurisdiction. Art
5(2) of the KCPA also provides that the general forum for a foreign corporation shall be the place in
Korea where it has an office or a business office. According to this provision, it is not material to theexercise of jurisdiction by the court located in the general forum whether such office or place has any
relation to the action. Despite a strong opposing view, Korean courts tend to hold that if a foreign
6corporation establishes an office or a business office in Korea, it will be subject to Koreaninternational jurisdiction generally without regard to whether the particular cause of action isconnected with the operation of the Korean office or business office, which can be viewed as
supporting the American concept of doing business. However, it is not clear whether the Supreme
Court still maintains the position expressed in the past, because in a recent case of 2010, the Supreme
Court apparently did not follow the approach of a judgment of 2000 in a comparable dispute.

Amendment / Legislation
An article along the lines of the following will be added in the KPILA (Cf. Brussels I bis (Art. 7(5)),
the 1999 Preliminary Draft (Art. 9) and the JCPA (Art. 3-3(4)):

An action against a person having an office or establishment in Korea and relates tothe activities of that office may be filed in Korea.
4-2. Jurisdiction based upon the Activity of the Defendant
How to limit the scope of this ground of international jurisdiction?
Current Status
There is no provision on this head of international jurisdiction.

Amendment / Legislation
An article along the lines of the below will be inserted in the KPILA (Cf. The 1999 Preliminary Draft(Art. 9) and the JCPA (Art. 3-3(5)):
An action against a defendant may be filed in Korea where the defendant has continuously
and systematically carried on commercial or business activity in, or towards, Korea; provided that the
dispute relates to that commercial or business activity.
Even in the absence of such article, under Art. 2 of the current KPILA, one could allow suchinternational jurisdiction based upon “substantial connection” with Korea. However, in order toenhance legal certainty and clarity, the Committee agreed to insert such a provision. Art. 3-3(5) of the
JCPA is a good model of such jurisdiction. One could justify such ground of international jurisdiction
because foreign companies can conduct business in Korea without establishing any office or
establishment in Korea through internet and by other means. This could be described as so-called“transacting business” jurisdiction (i.e. special jurisdiction) as opposed to “doing business”
jurisdiction (i.e. general jurisdiction). The Committee wanted to make clear that it is a ground ofinternational jurisdiction based upon a so-called “targeted activity criterion”. There were several
concerns of the Committee. The first concern was that the text should be further clarified, so that mere
operating of a website by a foreign company where Korean residents could access should not be7

regarded as carrying on business or commercial activity in Korea. The second concern was that the“targeted activity criterion” in the context of B2B should be more stringent than that applicable toconsumer contracts. This is because the KPILA has already introduced international jurisdiction based
upon a “targeted activity criterion” for consumer contracts (Art. 27). Otherwise, the international
jurisdiction based upon a “targeted activity criterion” for consumer contracts would be redundant.
We should pay attention to the relationship between the activity-based jurisdiction to be
newly introduced on the one hand, and the traditional contract jurisdiction and the tort jurisdiction,
respectively, on the other. In particular, certain contract disputes and tort disputes arising from aforeign company’s activities targeted towards Korea could be subsumed under the head of theactivity-based jurisdiction in the future.
* Difference between Korea and JapanThe KPILA mentions “targeting” or “directing,” whereas the JCPA does not. The relationshipbetween the “targeted activity criterion” in the contexts of B2B and B2C is not a concern under JCPA
since the protective jurisdiction for consumer contracts under the JCPA does not require any“targeting” or “directing” activities on the part of the business.

5. Jurisdiction Agreement (Choice of Court Agreement)
Current Status
In practice, the parties’ agreement on international jurisdiction plays a very important role. The
validity of the parties’ agreement on international jurisdiction in a cross-border action is generally
accepted in Korea, although there is no express provision on point in the KCPA. However, theSupreme Court held on September 9, 1997 that in order for a jurisdiction clause conferring exclusive
jurisdiction upon a foreign court to be valid, (i) the case does not fall under the exclusive jurisdictionof Korea, (ii) the agreed upon foreign court has valid international jurisdiction under its law, (iii) thecase should have a reasonable relationship with the chosen foreign court, and (iv) the jurisdiction
agreement is not egregiously unreasonable or unfair. Although the condition (iii) has been criticizedby legal commentators, the Supreme Court maintains its position.

Amendment / Legislation
In relation to the requirement mentioned in (iii) above, the Committee agreed not to follow theposition of the Supreme Court. In addition, considering the entry into force of the “Convention on
Choice of Court Agreements” on October 1, 2005 at the Hague Conference, the Committee agreed to
specify as below.
A Korean court shall dismiss proceedings where there is an exclusive choice of court
agreement in favor of a foreign court, unless (i) the agreement is null and void under the law
8

(including choice of law rules) of the State of the chosen court; (ii) a party lacked the capacity toconclude the agreement; iii) giving effect to the agreement would be manifestly contrary to the public
policy of Korea; or iv) the chosen court has decided not to hear the case or there is a situation inwhich the agreement cannot properly be performed.
* Difference between Korea and Japan
As to the law applicable to the choice of court agreement, the KPILA will adopt the approach of theHague Convention, whereas the JCPA does not have any express provision.

6. Appearance
Current Status
Even if a person is not otherwise subject to the international jurisdiction of Korean courts, if heappears before the Korean court and responds to the merits without objecting to the jurisdiction, theKorean court will assume international jurisdiction since he can be deemed to have consented to theinternational jurisdiction of the Korean courts (Art. 30).

Amendment / Legislation
An article along the lines of the Brussels I bis (Art. 26(1)), the 1999 Preliminary Draft (Art. 5) and theJCPA (Art. 3-8) will be inserted in the KPILA.

7-1. Jurisdiction based upon the Relationship between Claims
Current Status
The KCPA contains a provision allowing an action involving several claims to be filed before thecourt having local jurisdiction over one of the claims (§25(1)). Some legal commentators take theview that the provision could be applicable to cross-border actions as well. However, the Brussels I
and the 1999 Preliminary Draft do not contemplate such possibility at all.

Amendment / Legislation
An article along the lines of the below will be inserted in the KPILA.
Where two or more claims are made jointly in a single action and Korean courts haveinternational jurisdiction over one of them, the action may be filed before Korean courts only if theclaims have a close connection between them.
* A question arises as to the interaction between the so-called “mosaic rule” (applicable to torts or
infringement of intellectual property rights) on the one hand, and international jurisdiction based upon
relationship between claims on the other. Under the ‘mosaic rule’, a plaintiff may file an action either
in the courts of the State where the damage originated or the domicile or habitual residence of the9defendant, in respect of the whole of the damage suffered, or in the courts of the States where thedamage actually occurred, but only in respect of the damage suffered in the States concerned.
* family matters: principal (or anchor) claim v. incidental claim
The Committee decided to apply to family matters the rules on international jurisdiction
based upon the relationship between claims but with some qualifications. Accordingly, Korean courts
having international jurisdiction over a principal (or anchor) claim such as divorce or adoption canhave international jurisdiction over an incidental claim such as a claim for appointment of custodian
or a claim for child support. However, Korean courts having international jurisdiction only for an
incidental claim cannot have international jurisdiction over a principal claim.

7-2. Jurisdiction based upon the Relationship between Parties
Current Status
The KCPA contains a provision allowing an action by, or against, several persons to be filed before
the court having jurisdiction over one of the defendants (§25(2)). Some legal commentators take theview that the provision could be applicable to cross-border actions as well. The Brussels I and the1999 Preliminary Draft also allow such possibility but under stricter conditions.

Amendment / Legislation
An article along the lines of the following will be inserted in the KPILA:A plaintiff filing an action against a defendant before a Korean court in which that defendantis habitually resident may also file an action before that court against other defendants not habituallyresident in Korea only if the claims against the defendant habitually resident in Korea and the otherdefendants are so closely connected that they should be adjudicated together to avoid a serious risk ofinconsistent judgments.
* Difference between Korea and JapanThe KPILA will only refer to multiple defendants, whereas the JCPA refers to multiples plaintiffs aswell as multiple defendants.
8. Counter-claims
An article along the lines of the below will be inserted in the KPILA (Cf. Brussels I (Art. 8(3)), the1999 Preliminary Draft (Art. 15)(these two are a little bit narrower) and the JCPA (Art. 146(3)):

A defendant may file a counter-claim before a Korean court, if the counter-claim has
a close connection with the original claim or with the defense thereto, and the proceedings
will not be significantly delayed thereby; provided, however, that the foregoing shall not
apply where the counter-claim falls within the exclusive jurisdiction of a foreign court.
109. Lis Pendens
Current Status
There is no provision on this issue in the KPILA or KCPA. Although there is a split of opinion,
majority of lower courts appear to take the priority rule coupled with a positive predicted recognition.

Amendment / Legislation
Rules on lis pendens along the lines of the below will be inserted in the KPILA, which resembles Art.
21 of the 1999 Preliminary Draft.
When an action that is the same as the case pending before a foreign court is filed before a
Korean court, the Korean court may, ex officio or upon application of a party, suspend the proceedings
if the foreign court is expected to render a judgment capable of being recognized in Korea, unless the
Korean court has jurisdiction pursuant to a exclusive jurisdiction agreement or it is manifest that the
Korean court is more appropriate to resolve the dispute than the foreign court. A party can file animmediate appeal against the Korean court’s decision to suspend the proceedings. Upon application ofa party, the Korean court may proceed with the case if the plaintiff in the foreign court has failed totake the necessary steps or if the foreign court has not rendered such a decision within a reasonable
time. The Korean court shall dismiss the case as soon as it is presented with a judgment rendered by
the foreign court that satisfies the requirements for recognition under Korean law. For the purpose ofthis Article, the timing when the action has been filed before the foreign and Korean courts is decisivein determining which action has been filed first.
* Difference between Korea and JapanThe KPILA will expressly set forth the rules on lis pendens, whereas there is no comparable provisionin the JCPA.

10. Exceptions in relation to Family Matters and Succession Matters
Current Status
There is no provision on this issue in the KPILA or KCPA.

Amendment / Legislation
Several new articles to be inserted in Chapter 1 of the KPILA (such as choice of court agreement andjurisdiction based upon appearance) will not be applied in the case of family matters and succession
matters.

1111. Provisional Measures
Current Status
There is no provision other than provisions on local jurisdiction in the KCPA and KCEA.

Amendment / Legislation
An article along the lines of the below will be inserted in the KPILA. (Cf. The 1999 Preliminary Draft(Art. 13) and the JCPA (Art. 11)):A petition for an order of provisional relief may be made before a Korean court where
Korean courts have international jurisdiction over an action on the merits or where the asset to beprovisionally attached or seized or the object of the dispute is located in Korea. In addition, a petition
for an order of provisional relief may be made before a Korean court where there is an urgent need, inwhich case the effect shall be limited within Korea.
* Art. 12(1) of the Child Protection Convention: “Subject to Article 7, the authorities of a Contracting
State in whose territory the child or property belonging to the child is present have jurisdiction to takemeasures of a provisional character for the protection of the person or property of the child whichhave a territorial effect limited to the State in question, in so far as such measures are not incompatible
with measures already taken by authorities which have jurisdiction under Articles 5 to 10.”* Similar provision in Art. 11(1) of the Convention on the International Protection of Adults

12. Forum non Conveniens: Special Circumstances Theory
Current Status
At present there is a split of opinion among legal commentators as to whether or not the doctrine offorum non conveniens, under which the Korean court may refuse to exercise international jurisdiction
even if Korean courts have international jurisdiction according to the standard established by the
KPILA, is permitted. In the past, Korean judges could have some amount of flexibility by resorting to
the so-called “special circumstances theory” modeled on the Japanese court precedents.

Amendment / Legislation
An express article permitting the forum non conveniens doctrine will be added in the amended KPILA.
The purpose is to give Korean judges some amount of discretion in concrete cases in exercisinginternational jurisdiction. Unlike the 1999 Preliminary Draft which expressly enumerates the factors
which the courts seized should consider in determining whether to exercise the international
jurisdiction, the KPILA will not list the factors.

12Article * (Declining of International Jurisdiction)(1) Even if Korean courts have international jurisdiction under this Act, in exceptional
circumstances, a Korean court may, on application by the defendant made no later than at the time of
the first defense on the merits, suspend its proceedings or dismiss the case if it is clearly
inappropriate for the court to exercise jurisdiction and if a court of another State has jurisdiction andis clearly more appropriate to resolve the dispute, unless the jurisdiction of the court seized isfounded on a choice of court agreement.
(2) In the case of para. 1, before suspending the proceedings or dismissing the case, the court should
give the plaintiff the opportunity to challenge the application of the defendant.
(3) The parties may bring an immediate appeal against the decision of the court under para. 1.
Under Korean law, recognition or enforcement of a foreign judgment may not be refused on the ground that
the Korean court considers that the foreign court should have declined international jurisdiction according
to the criterion under the KPILA. In such case, Korean courts cannot deny that the foreign court had
international jurisdiction.
* Difference between Korea and JapanThe KPILA will expressly set forth the doctrine of forum non conveniens, whereas the JCPA sets
forth the special circumstances theory (Art. 3-3(9)).

13. Non-contentious Matters
Are detailed rules on international jurisdiction for non-contentious matters available?
Current Status
There is no provision other than provisions on local jurisdiction in Family Litigation Act and the Act
on Procedures of Non-contentious Matters.

Amendment / Legislation
The Committee agreed to take the below approach.
As to family matters, succession matters and personal matters, KPILA will set forth rules oninternational jurisdiction for non-contentious matters as well as contentious matters. As to the othermatters, the KPILA will set forth rules on international jurisdiction for contentious matters. Articles in
the former category will provide that “Korean courts shall have international jurisdiction over certain
matters”, whereas articles in the latter category will provide that “An action on certain issues may be
filed before Korean courts.” In addition, an article on non-contentious matters in Chapter 1 will
provide that the rules on international jurisdiction for contentious matters will apply, mutatis mutandis,
to non-contentious matters unless it is against their nature. However, there was an opposing view tothe effect that as to non-contentious matters of the latter category, the rules on local jurisdiction (or13venue provisions), rather than the rules on international jurisdiction for contentious matters set forth in
the KPILA, should apply, mutatis mutandis. There was no final decision.
14. Exclusive Jurisdiction
Current Status
The KCPA does not contain provisions on exclusive international jurisdiction of Korean courts.
However, a majority of commentators take the position that Korean courts have exclusive
international jurisdiction in the following cases:(i) in proceedings relating to rights in rem in immovable property, if the property is situatedin Korea; (ii) in proceedings relating to the validity of the constitution, nullity or dissolution ofcompanies or the validity of the decisions of their organs, if the company has been established under
Korean law; (iii) in proceedings relating to the validity of entries in public registers, if the register is
kept in Korea; and (iv) in proceedings relating to the registration or validity of patents, trademarks, orother similar rights required to be registered, if the registration has been applied for or has taken placein Korea.
This is very similar to the list of the exclusive jurisdiction under the Brussels I Regulations(§22). With regard to (iv) above, there was a dispute whether proceedings where the Korean plaintiff
requires the Japanese defendant to transfer and register the transfer of the patents registered in Japanpursuant to the contract between the parties is subject to the exclusive jurisdiction of Japan or not.
While the Supreme Court admitted that the proceedings where the subject matter is the validity or
existence of patents generally fall under the exclusive jurisdiction of the country of registration (inthat case in Japan), the Supreme Court held that the proceedings in question did not fall under the
exclusive jurisdiction of Japan, because the principal subject matters of the dispute were theinterpretation of the contract, and the rights and obligations of the parties under the contract. The
judgment was welcomed by legal commentators in Korea.

Amendment / Legislation
Rules on exclusive jurisdiction will be added. However, the articles dealing with exclusive
jurisdiction will be added in the respective related chapters, rather than in Chapter 1. Rules on theproceedings mentioned in (ii) above will be inserted in Chapter 2 dealing with person. Rules on theproceedings mentioned in (iii) above will be inserted in Chapter 4 dealing with rights in rem. Rules on
the proceedings mentioned in (iv) above will be inserted in Chapter 5 dealing with intellectual
property. As to the proceedings mentioned in (i) above, there was much discussion as to whether
Korean courts should have exclusive jurisdiction or not. Some members supported the position of theBrussels I and the 1999 Preliminary Draft, whereas other members were in favor of the position of the
JCPA according to which Korea would not have exclusive jurisdiction.
14

* Difference between Korea and JapanThe KPILA will reflect the position of the Supreme Court of Korea on the international jurisdiction
over the matters relating to the registration or validity of patents, trademarks, or other similar rights
required to be registered, whereas the JCPA has no comparable exception.

IV. Special Provisions on Jurisdiction: Articles to be inserted in Chapters 2 through 10 (except
for Chapter 3): Rules on Exclusive Jurisdiction and Special Jurisdiction

Here I will discuss the rules on exclusive jurisdiction and special international jurisdiction in the orderof the articles to be inserted in Chapters 2 through 10 (except for Chapter 3) of the KPILA. In
principle, the rules on international jurisdiction in Chapter I and the rules on special jurisdiction ofeach chapter include exhaustive rules on international jurisdiction for the matters falling under each
Chapter. However, there are exceptions in matters falling under Chapter 5 (Intellectual Property) and
Chapter 10 (Maritime Matters).

1. Person (Chapter 2)
Current Status
There is no provision other than the below venue provisions under the KCPA.
An action by a company or other association against its member, or an action by a member
against a member, each of which is based on his status as a member may be filed before Korean
courts if Korean courts have general jurisdiction over the company or other association (Art. 15(1) of
the KCPA). An action by an association or foundation against its officer based on his/her status as an
officer, or an action by a company against its founder or inspector may be filed before Korean courts
if Korean courts have general jurisdiction over the association, the foundation or the company,
respectively (Art. 15(2) of the KCPA). An action by a creditor of a company or other association
against its present or former member, based on his/her status as a member may be filed before Korean
courts if Korean courts have general jurisdiction over the company or other association (Art. 16 of theKCPA).

Amendment / Legislation
Declaration of Disappearance: Korean courts shall have international jurisdiction over matters relating
to declaration of disappearance of natural person in any of the following cases: (i) where the absentee
is a Korean national, (ii) where the last habitual residence of the absentee was in Korea, or (iii) where
the absentee has property in Korea or there is a legal relationship governed by Korean law or otherjustifiable ground (the international jurisdiction to be limited to the relevant property and the legal
15

relationship).
Management of Property: Korean courts shall have international jurisdiction over mattersrelating to management of the absentee’s property if the absentee was last habitually resident in Korea
or has property in Korea.
Exclusive Jurisdiction: An action relating to nullity or dissolution of a legal person or an
association, or the validity or nullity of the decisions of a legal person or an association established by
Korean law may be filed only before Korean courts.
Special Jurisdiction: Special jurisdiction mirroring the venue provisions of the KCPA (Arta. 15
and 16) mentioned above will be inserted in the KPILA (Cf. Art. 3-3(7) of the JCPA).

2. Real Property (Chapter 4)
Current Status
There is no provision other than venue provisions in the KPCA (Art. 20).

Amendment/Legislation
An action relating to immovable property may be filed in Korea if the immovable is located in Korea.
An action relating to the ownership of immovables falls under this sub-paragraph. The international
jurisdiction is not exclusive, although if the action relates to the registration of immovables to beeffected in Korea, the international jurisdiction is exclusive except where such registration should be
effected by a contract between the parties and the principal subject matters of the dispute are theinterpretation of the contract, and the rights and obligations of the parties under the contract.
3. Intellectual Property Rights (Chapter 5)
Current Status
There is no provision other than venue provisions in the KPCA (Art. 24).
The most problematic disputes relating to intellectual property are those involving theregistration or validity of patents or other similar rights requiring registration. It has been generally
thought that Korean courts have exclusive international jurisdiction in proceedings relating to theregistration or validity of patents or other similar rights, if the registration has taken place in Korea.
However, in a recent case of 2011 mentioned above, the Supreme Court distinguished (i) proceedings
whose subject matter is the validity or existence of patents on the one hand, and (ii) proceedings
whose subject matters are the interpretation and effects of the contractual obligations between theparties on the other, and clearly held that only the first category falls under the exclusive jurisdictionof the country of registration.

16

Amendment / Legislation
The position of the Supreme Court will be maintained by the amended KPILA. The Committee
agreed to insert three articles along the lines of the below.
First, an action relating to validity and extinction of intellectual property that are created byregistration may be filed before Korean courts only when they are registered in Korea. However, theforegoing shall not apply when those matters arise as incidental questions. In addition, the foregoingshall not apply when the transfer or registration being the subject matter of the proceedings should be
performed by a contract between the parties. Second, an action relating to contractual matters such as
assignment or license of intellectual property rights may be filed before Korean courts if such rights
are protected, exploited or registered in Korea. Third, an action relating to the infringement ofintellectual property rights may be filed before Korean courts if the infringement took place in Korea
or the infringement has been directed towards Korea.
The relationship between the rule on the infringement of intellectual property rights in
Chapter 5 and the rules on tort in general in Chapter 6 need to be clarified.
*Interaction between mosaic system on the one hand, and international jurisdiction based upon
relationship between claims on the other
The Committee could not come to a final conclusion as to whether to introduce the so-called“mosaic rule”. If such a rule is adopted, a question arises as to whether international jurisdiction based
upon relationship between claims could still be permitted in such cases. If permitted, the mosaic rule
(i.e. quantitative limitation of international jurisdiction) would be meaningless.
* Difference between Korea and JapanThe JCPA has no separate provisions on an action relating to contractual matters such as assignment
or license of intellectual property rights and an action relating to the infringement of intellectual
property rights. In Japan, the rules on contracts and torts in general shall be applicable to those issues,
respectively.

4.

Obligations (Chapter 6)

A. Contract
Current Status
The KCPA provides that an action relating to property rights may be brought before the court locatedin the place of abode or the place of performance (Art. 8). In a case involving payment of contractual
obligations, the Supreme Court held in 1972 that Art. 8 could be a basis of international jurisdiction.
Although Art. 8 on its face is not limited to the performance of a contractual obligation, the majority
view maintains that the provision should not apply to non-contractual obligations. It is not clear
whether the Supreme Court still maintains the former position expressed in 1972, because in a recent
17case of 2006 the Supreme Court apparently did not follow the approach of the 1972 Judgment in a
dispute based upon contractual obligations.

Amendment / Legislation
An article along the lines of the following will be added under the strong influence of Art. 6 of the1999 Preliminary Draft:
An action relating to contracts may be filed before Korean courts if:a) in matters relating to the supply of goods, the goods were supplied in Korea;b) in matters relating to the provision of services, the services were provided in Korea; orc) in matters relating both to the supply of goods and the provision of services, performanceof the principal obligation took place in Korea.
This means that the place of performance of a contractual obligation can be a ground ofinternational jurisdiction in a very limited situation. The reason for such limitation was that the factual
situations of contracts were so diverse that the international jurisdiction based upon the place ofperformance of a contractual obligation cannot always be justified. In addition, if we baseinternational jurisdiction on the place of performance in question, two different States can haveinternational jurisdiction over the disputes arising from one contract depending upon who files anaction as plaintiff. For example, under a sales contract between a Korean seller and a Japanese buyer,
Korea or Japan may have special jurisdiction depending upon whether the Korean seller files anaction seeking payment of the purchase price or the Japanese buyer files an action seeking delivery of
the goods.
How about other types of contract? Even under a contract other than those to be enlisted in
the KPILA, one could argue that an action could be filed in Korea if Korea has a substantial
connection with the parties or the dispute, even if the place of performance of the contractual
obligation in question is not located in Korea. This is a situation where Art. 2 of the KPILA could
play a positive role.
* Difference between Korea and Japan
International jurisdiction based upon the place of performance of the contractual obligation is widely
accepted under the JCPA (Art. 3-3(1)). In addition, under the JPCA international jurisdiction based
upon the place of performance is also accepted for non-contractual obligations such as an action
arising from negotiorum gestio performed in connection with a contractual obligation or an action
relating to unjust enrichment arising in connection with a contractual obligation.

B. Protection of Socio-Economically Weaker Parties: Consumer Contracts
Current Status18

In order to protect socio-economically weaker parties, the KPILA sets forth special rules oninternational jurisdiction in respect of passive consumer contracts and individual employment
contracts (Arts. 27 and 28), which are modelled on the Brussels Convention (Arts. 13 through 15), theBrussels I Regulation (Arts. 15 through 17) and on the 1999 Hague Draft Convention (Arts. 7 and 8).
This is so-called “protective jurisdiction”.
In the case of a consumer contract falling under Art. 27(1), a consumer may also bring anaction in the country of his habitual residence; on the other hand, an action against the consumer may
be brought by the other party only in the country of the consumer’s habitual residence. In addition, thechoice of court agreement by the parties to a consumer contract is effective only if such agreement isentered into after the dispute has arisen; or if it allows the consumer to bring an action before anothercourt in addition to those having international jurisdiction under Art. 27.
In order for a consumer contract to be eligible for protection under Art. 27, the contract
should be entered into by a consumer for a purpose that can be deemed to be outside his profession orbusiness activity, and it should be a so-called ‘passive consumer contract”, i.e., falling into one of thecategories mentioned below: (i) where, prior to the conclusion of the contract, the other party engaged
in or directed to that country professional or business activities including soliciting business throughpublicity, and the consumer had taken in that country steps necessary for the conclusion of thecontract; (ii) where the other party received the consumer’s order in that country; or (iii) where theother party arranged the consumer’s journey to a foreign country for the purpose of inducing theconsumer to order.

Amendment / Legislation
Scope of consumers under Art. 27 of the KPILA modeled on the Rome Convention will be slightly
expanded along the lines of the Brussels I and the Rome I.
* Relationship between the head of international jurisdiction on consumer contracts and the activitybased jurisdiction to be newly introduced* Difference between Korea and Japan
Under the KPILA, only so-called “passive consumers” are protected, whereas under the JCPA, allconsumers are protected. In practice, however, Japanese courts are expected to limit the excessive
scope by operation of Art. 3-9 of the JCPA.

C. Protection of Socio-Economically Weaker Parties: Employment Contract
Current Status19Art. 28 sets forth special rules on employment contracts. Whereas the consumer’s habitual residence
is relevant in consumer contracts, the place where the employee habitually performs his work is
relevant in individual employment contracts.

Amendment / Legislation
There will be no amendment except for the structural change in order to split the provisions on
applicable law and the provisions on international jurisdiction.

D. Torts: no separate rules on Jurisdiction for special types of tort
Current Status
An action for tort may be filed before the court of the place where the tortious act occurred (Art. 18 of
the KCPA). It is generally recognized that Art. 18 of the KCPA could apply in determining thequestion of international jurisdiction. Where the tortious act occurred in one place and theconsequence of the injury occurred in another, each of them could be a ground for international
jurisdiction. The majority view maintains that the places should be determined rationally from theviewpoint of international jurisdiction and that, in the case of product liability in particular, it should
be taken into account whether the place of acting or the place of injury was one of the areas that thedefendant was reasonably able to foresee. The Supreme Court endorsed such a view in the productliability case of 1995. This judgment was apparently influenced by the idea of ‘reasonable
foreseeability’ and ‘purposeful availment’ appearing in the decisions of the Supreme Court of the US(World-Wide Volkswagen Corp v Woodson, 444 U.S. 286 (1980) and Asahi Metal Industry Co v
Superior Court, 480 U.S. 102 (1987)).

Amendment / Legislation
An article along the lines of the Brussels I bis (Art. 7(2)), the 1999 Preliminary Draft (Art. 10) and theJCPA (Art. 3-3(8)) will be inserted in the KPILA. The ‘mosaic rule’, as in the Shevill case of 1995 (C68/93) of the ECJ, is not contemplated. There will be no separate rules on special types of tort, such as
product liability or defamation, etc.

5. Family (Chapter 7)
Current Status
In its leading case of 1975, the Supreme Court held that (i) in principle, the domicile of the defendant
should be located in Korea in order for Korean courts to have international jurisdiction, because theforum rei principle is also valid for family matters including divorce cases; and that (ii) however, by
way of exception, the Korean courts may have international jurisdiction even if the domicile of the20

defendant is located outside of Korea, where the refusal to entertain the action could amount to adenial of justice. As situations amounting to a denial of justice, the Supreme Court mentioned cases
where the defendant fails to appear or a comparable situation exists, or the defendant actively
responds to the action. Obviously such position has been strongly influenced by the Japanese court
precedents.
However, it is not clear whether the Supreme Court still maintains such position after theamendment of the KPILA in 2001, because a subsequent judgment of the Supreme Court did not
mention the foregoing jurisdiction rules. The position of the lower courts is split into two classes: (i)one to make efforts to establish the international jurisdiction rules on a case-by-case analysis under
the KPILA, instead of following the international jurisdiction rules established by the Supreme Courtin the case of 1975 and (ii) the other one adhering to international jurisdiction rules established by theSupreme Court in the case of 1975.

Amendment / Legislation
Articles dealing with international jurisdiction (i) on marriage, establishment of parent-childrelationship, (ii) matters relating to adoptive parent-child relationship, parental right (parental
responsibility), (iii) maintenance and (iv) adult guardianship will be added, respectively.

A. Matters relating to Marriage
Korean courts have international jurisdiction over the matters relating to marriage in any one of thefollowing cases: (i) the applicant and one or all of the minor children are habitually resident in Korea,(ii) either of the spouses is habitually resident in Korea and the spouses were last habitually resident in
Korea, (iii) both spouses have Korean nationality or (iv) a Korean applicant with a habitual residence
in Korea files an action solely for the purpose of dissolving the marriage relationship. Separate rules
will be added for cases where both spouses are respondent. However, the Korean nationality of eitherof the spouses (in particular the applicant) cannot be a ground of international jurisdiction. In addition,
Korean courts have international jurisdiction if the respondent is habitually resident in Korea. This isbecause the article on general jurisdiction in Chapter 1 is also applicable to contentious mattersrelating to marriage.
However, the KPILA will not permit forum actoris such as that in the Brussels II bis (thehabitual residence of the applicant coupled with his residence for one year) or forum actoris in thehome country such as that in the Brussels II bis (the habitual residence of the applicant coupled withhis residence for six months in the home country) on the ground that it is not fair to the respondent.
Considering that matrimonial property is closely related to the matters of property, theCommittee considered inserting an article permitting a choice of court agreement between the parties
21

concerned. However, the idea has been finally abandoned. This means that the foregoing rules oninternational jurisdiction applicable to marriage-related matters will apply to matrimonial property
matters.

B. Matters relating to Establishment of parent-child relationship
Korean courts have international jurisdiction over the matters relating to establishment of parent-childrelationship and its dissolution if the child has his habitual residence in Korea or the child and one ofthe parents have Korean nationality.

C. Matters relating to Adoptive parent-child relationship
Korean courts have international jurisdiction over the matters relating to establishment of adoption if
a prospective adoptee or the prospective adoptive parent has his or her habitual residence in Korea.
Korean courts have international jurisdiction over matters relating to confirmation of adoptive parentchild relationship or its dissolution if the child has his habitual residence in Korea or the child and oneof the adoptive parents have Korean nationality. Although Korea has signed the Adoption Conventionin May 2013, Korea has not ratified the same.

D. Matters relating to Parental right (parental responsibility)
Korean courts have international jurisdiction over the matters relating to parental rights, custody,
rights of visitation or guardianship of a minor child if the child is habitually resident in Korea;
provided, however, that the foregoing shall not apply if the child is settled in its new environment
after the expiration of the period of one year from the date when the child has been wrongfully
removed or retained. The rationale behind this jurisdiction rule is that it enables the authorities to takenecessary measures as promptly as possible and lower the burden of the child in need, and the place isnear evidence and assistance to children and youths. That is also the position taken by the“Convention on the Civil Aspects of International Child Abduction” (“Abduction Convention”) to
which Korea is a party and the “Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protectionof Children” (“Child Protection Convention”).
Korean courts also have international jurisdiction over the matters relating to guardianshipfor a minor child if the ward has his assets in Korea and there is a need to protect the ward.
It is noteworthy that different jurisdiction rules will apply to the guardianship for minor
children on the one hand and the guardianship for adults on the other, the difference being that thenationality constitutes a ground of jurisdiction in the case of adults, whereas that is not the case withminor children. In this context a question was raised whether such a distinction could be justified
22because in the context of applicable law the KPILA refers the guardianship for minor children and theguardianship for adults to the same connecting principles. The majority of the member of theCommittee accepted that such a distinction was inevitable.

E. Matters relating to MaintenanceAt present, it is not clear whether the courts for the place where the creditor is habitually resident haveinternational jurisdiction. The Committee agreed to insert an article which expressly grantsinternational jurisdiction on the courts for the place where the creditor has his habitual residence.
Apparently, it is to protect weaker parties on the level of private international law. In addition, Korean
courts have international jurisdiction if the respondent is habitually resident in Korea. This is because
the article on general jurisdiction in Chapter 1 is also applicable to contentious matters relating tomaintenance. This ground of international jurisdiction will bring about an important change in that thejurisdictional obstacle for the so-called “Kopinos” could be overcome. Of course, there are otherobstacles such as lack of reciprocity between Korea and the Philippines. In addition, the parties may
enter into a choice of court agreement on maintenance matter; provided, however, the foregoing shallnot apply where the maintenance creditor is a minor or an adult ward or the place selected by theparties have no connection with the dispute. Such a choice of court agreement shall satisfy the formal
requirement applicable to a choice of court agreement in Chapter 1.

F. Adult Guardianship
Korean courts have international jurisdiction over the matters relating to guardianship for adults inany of the following cases: (i) where the ward is habitually resident in Korea; (ii) where the ward is a
Korean; or (iii) where the ward has his assets in Korea and there is a need to protect the ward.

G. Jurisdiction based upon nationality of the parties
In certain family matters, Korea has international jurisdiction if both parties have Korean nationality.
This is the case with marriage-related matters, whereas this is not the case with establishment of
parent-child relationship or maintenance. Accordingly, we should pay more attention so that the rules
on jurisdiction based upon nationality would be consistent in diverse family matters.

H. Overall Assessment and Future Task
Compared with European Union, which has the “Council Regulation (EC) No 2201/2003 of 27
November 2003 concerning jurisdiction and the recognition and enforcement of judgments inmatrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No
1347/2000)” (the “Brussels II bis”), the “Council Regulation (EC) No 4/2009 of 18 December 200823

on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in mattersrelating to maintenance obligations” (the “Maintenance Regulation”), the “Regulation (EU) No
650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law,
recognition and enforcement of decisions and acceptance and enforcement of authentic instruments inmatters of succession and on the creation of a European Certificate of Succession” (the “Succession
Regulation”), those rules to be inserted in the KPILA are very much brief. In addition, many countriesof the EU are parties to some of the Hague Conventions, such as the Abduction Convention and theChild Protection Convention. Accordingly, one may doubt whether it is desirable for Korea to insert
insufficient rules on international jurisdiction for family matters. However, I am confident that thoserules to be inserted in the KPILA could improve the current situation and will constitute the basis
upon which we could establish more detailed rules in the future.
* Difference between Korea and JapanI understand that the Ministry of Justice and experts of Japan are in the course of making concerted
efforts to prepare international jurisdiction rules for family matters which will be enacted in the future.
The international jurisdiction rules to be inserted in the KPILA will also set forth international
jurisdiction for non-contentious matters in the area of family law.

6. Succession (Chapter 8)
Current Status
An action relating to a succession, a bequest (or a testamentary gift) or other acts taking effect upon
death may be filed before the court located in the area where the general forum of the deceased was
located at the time when such succession commenced (Art. 22 of the KCPA). In addition, an action
relating to a succession claim and the liability of an estate, which does not fall under Art. 22 of the
KCPA, may be filed before such court, if the whole or part of the estate is located in the jurisdiction
area of the court under Art. 22 of the KCPA. It is generally recognized in Korea that these rules apply
to international jurisdiction.

Amendment / Legislation
Korean courts shall have international jurisdiction to rule on the succession as a whole if the deceased
had his habitual residence in Korea at the time of death. The same applies where the deceased had hislast habitual residence at the time of death if his habitual residence is unknown. In addition, Korean
courts shall have international jurisdiction to rule on the succession as a whole if the deceased has his
estate in Korea; provided, however, that the foregoing is not applicable when the value of the estate issignificantly small.
In addition, the Committee agreed to set forth international jurisdiction for matters relating to24

wills. Korean courts shall have international jurisdiction to rule on the will if the deceased had his
habitual residence in Korea at the time of the will or the property which is the subject of will islocated in Korea. Under Korean law, matters relating to wills generally fall within the category of
non-contentious matters. Finally, considering that succession is closely related to the property and the
KPILA permits party autonomy within a certain limit in the context of applicable law, the Committee
agreed to insert an article permitting a choice of court agreement between the parties concerned,
except where the parties are a minor or an adult ward or the place chosen has no substantial
connection with the dispute. The scope of the “parties concerned” is not entirely clear especially in thecase of non-contentious matters (Cf. Recital 28 of the EU Succession Regulation). Such a choice ofcourt agreement should satisfy the formal requirement applicable to a choice of court agreement in
Chapter 1. I am not sure whether allowing a choice of court agreement in the context of succession
matters is desirable.
According to the principle established by the Committee, the article on general jurisdiction in
Chapter 1 should also be applicable to succession matters. However, it is not clear whether that iscorrect without any limitation.
* Difference between Korea and Japan
The international jurisdiction rules to be inserted in the KPILA will also set forth international
jurisdiction for non-contentious matters in the area of succession law. Most of the matters on wills
will fall under the category of non-contentious matters. There are no comparable rules in Japan if myunderstanding is correct.

7. Promissory Notes, Bills of Exchange and Checks (Chapter 9)
Current Status
There is no provision other than the venue provision in the KCPA (Art. 9).

Amendment / Legislation
An action relating to a bill of exchange, promissory note or check may be filed in Korea if the place of
payment of the bill, promissory note or check is located in Korea. This provision mirrors Art. 9 of the
KCPA.

8. Maritime Matters (Chapter 10)
Current Status
There is no provision other than the venue provision of the KCPA (Arts. 10, 13 and 14).

Amendment / Legislation25

An action relating to limitation of liability of the shipowner, charterer, manager, operator or otherusers (hereinafter referred to as the “shipowner and others”) of the ship may be filed before Korean
courts if any one of the following places is located in Korea: (i) the place of registration of the ship inrespect of which the accident took place; (ii) habitual residence or principal place of business of the
shipowner and others; (iii) the place of accident (including place of injury); (iv) the first place atwhich the ship arrived after an accident; (v) the place where assets of the shipowner and others has
been arrested; or (vi) an action based upon limitation claim has been filed against the shipowner andothers.
An action against a shipowner and others relating to ship or navigation may be filed before
Korean courts if the arrest of the ship has been effected in Korea (so-called “forum arresti”). The
venue provision whereby an action based on a claim secured by maritime lien or any other security
interest in a ship (such as a ship mortgage) may be filed in the place where the ship is located, will not
be transformed into a rule on international jurisdiction. In other words, Art. 3-3(6) of the JCPA will
not be inserted in the KPILA. The reason is that mere presence without attachment or arrest is not
sufficient to secure the creditor’s exercise of his right against the ship.
An action relating to general average may be filed before Korean courts if any one of thefollowing places is located in Korea: (i) the location of the ship; (ii) the place where the arrest of theship has been effected; or (iii) the first place at which the ship arrived.
An action relating to a collision of ships or any other accident at sea may be filed before
Korean courts if any one of the following places is located in Korea: (i) the place of registration, or
the location, of the damaging ship; (ii) the place of collision; (iii) the first place at which the damaged
ship arrived; or (iv) the place where the damaging ship has been arrested. The relationship between
the rules on the collision of ship in Chapter 10 and the rules on tort in general in Chapter 6 need to beclarified.
An action relating to salvage may be filed before Korean courts if any one of the following
places is located in Korea: (i) the place where the salvage was performed; or (ii) the first place atwhich the salvaged ship arrived.
Although Korea is not a party to the “International Convention on Arrest of Ships” (“Arrest
Convention”), the Committee accepted the proposal that forum arresti be a ground for international
jurisdiction for maritime matters, such as limitation of liability of the shipowner and others, generalsalvage, collision of ships and salvage. The place of arrest in this context encompasses place of arrestor provisional arrest and the place where the ship could have been arrested, but bail or other security has
been given in lieu of the arrest or provisional arrest.
* Difference between Korea and Japan

26

The JCPA has no separate chapter dealing with international rules on maritime matters. However, theJCPA also has several rules on maritime matters such as an action based on a maritime-lien claim andany other claim secured by a ship, an action seeking damages arising from a collision of ships and anaction relating to salvage (Arts. 3-3(6), (9) and (10)).

9. Trust and Insurance Contracts
Current Status
There is no provision.

Amendment / Legislation
The Committee considered inserting in the KPILA rules on trust and insurance contracts. However,the conclusion was not to insert those rules.

IV.

Concluding Remarks

Thus far, I have reviewed the major contents of the rules on international jurisdiction to be inserted in
the KPILA in the near future. As I have mentioned at the beginning of my presentation, unfortunately
the Committee could not succeed in preparing the final draft of the amended KPILA. However, theCommittee could reach agreement on various tricky issues including structure of the jurisdiction rules,
the introduction of forum non conveniens, lis pendens, family matters (albeit unsatisfactory) and noncontentious matters. The areas which have caused major difficulties were family matters and noncontentious matters. I understand that in the near future the KMOJ will take necessary measures tocomplete the preparation of the final draft in due course.

27